Wednesday, February 09, 2011

Philip Hamburger, a professor at Columbia Law School, argues that it is unconstitutional for the federal government to be giving out waivers to businesses and unions from the provisions of Obamacare. They have already granted 783 waivers from one of the provisions over organizations and the health insurance they must provide.

This is disturbing for many reasons. At the very least, it suggests the impracticability of the health-care law; HHS gave the waivers because it fears the law will cost many Americans their jobs and insurance.

More seriously, it raises questions about whether we live under a government of laws. Congress can pass statutes that apply to some businesses and not others, but once a law has passed — and therefore is binding — how can the executive branch relieve some Americans of their obligation to obey it?

The dangers of inequity are obvious. Will only corporations and unions get waivers, or can individuals also get them? For example, if a family physician feels financial pressure under the health-care law to fire one of his employees, will he get a waiver to avoid adding to unemployment?

Indeed, can even a small corporation get a waiver? Small businesses provide most new jobs, but the answer is obvious: Waivers are mostly, if not entirely, for politically significant businesses and unions that get the special attention of HHS or the White House. The rest of us must obey the laws.

Hamburger then traces the history of the state dispensing waivers from the law going back into the English background and our own constitutional history and finds no power for the legislature to give the executive branch the dispensing power to select whom a given law should apply to.

Even more strikingly, no American constitution, state or federal, allowed dispensation, let alone its delegation. Nor should this be a surprise. The power to dispense with the laws had no place in a constitution that divided the active power of government into executive and legislative powers. The dispensing power was not a power to make laws, nor even a power to repeal laws, but rather a power to relieve individuals of their obligation under a law that remained in effect. It thus was a power exercised not through and under the law, but above it.

Of course, after a violation of a statute, the executive could refrain from prosecuting the offender or even pardon him. Until the legislature changed the law, however, neither the legislature nor the executive could simply tell a favored person that he was not bound by it.

It's an intriguing argument and one I hadn't seen before. There definitely seems to be something fishy about members of the executive branch to have the power to pick and choose whom a given law should apply to. Take the question away from Obamacare and imagine that it was some other law such as the Civil Rights Act and businesses argued that they could not afford to implement the law. Can you imagine the uproar if any presidential administration tried to pick out which organizations would get waivers from the law? Or pick any law that imposes some sort of burden on organizations - collecting payroll taxes, paying the minimum wage, or following environmental regulations?

We don't know yet which organizations applied for waivers and were turned down, but there could be a very interesting case if such an organization then sued on the basis that Hamburger outlines.